1.The
two appellants in this Criminal Appeal have challenged the judgment of the
Punjab and Haryana High Court in Criminal Appeal No. 885-DB of 2003, whereby
the High Court upheld the conviction of the appellants for the offence under
Section 302 read with Section 34 IPC sentencing them each to undergo
imprisonment for life with a fine of Rs. 1,000/- with a direction to further
undergo RI for six months in case of default of payment fine.

2.The
prosecution case is that Inspector Harvinder Singh, Station House Officer,
Police Station, Civil Lines, Amritsar, alongwith other officials including
Balwinder Singh, ASI, Tarsem Singh, Constable, Bikram Singh, Constable, happened
to be present at Chowk Ciivil Lines, Amritsar, in connection with patrolling
during the night of 14.7.2002. At about 10.45 p.m., Rajiv Kumar son of Prem
Nath Sharma resident of House No. 75/5, Gulati Road, Amritsar Cantt, met them.
He gave them a written application dated 14.7.2002 (Ex. PE) giving the details
about the death of Sanjay Kumar @ Shammi. On the basis of the complaint, FIR
(Ex. PD) was registered at the Police Station, Civil Lines, Amritsar at 11:30
p.m.

The deceased, cousin
of the complainant, was working in Air Force MES as FGM and was residing in MES
Quarter No. 23/4. He was Secretary of an Employees' Union.

He, however, left the
aforesaid Employees' Union.

Two days later, he
became the President of INTUC Union.

Accused (1) Santokh
Singh, President of Employees' Union, (2) Sawarn Kumar (President of Employees'
Union), GE Amritsar (3) Jagsher Singh Bhola, General Secretary, (4) Gurdev
Singh, FMGHS II came to the quarter of the deceased in the presence of the
complainant. They said that they wanted to discuss something about the disputes
of the Union.

They, therefore, took
Sanjay alongwith them. Thereafter, Arjinder Pal Singh @ Prince, owner of a
Hotel came to their house and told them that Sanjay has been shot dead. In the
complaint, it is stated that the complainant had full confidence that all the
four persons who had called Shammi from his house had made Shammi drink liquor
and while he was under the influence of liquor, they had shot him dead after
snatching his pistol.

Endorsement Ex.P/1,
was made on this statement by the Inspector and sent to the police station
through Constable Bikram Singh. FIR (Ex. PE/3) was recorded on the basis
thereof by Balbir Singh, SI. His signature 3 4 on the same was identified by
Inspector Harvinder Singh when he appeared as PW-12 in the case.

3.The
place of the incident, Hotel Genesis in the Cantonment area of Amritsar, was
then visited by the Inspector alongwith other officials. The complainant Rajiv
Kumar was also taken alongwith the police party.

Santokh Singh and
Sawarn Kumar were arrested from the spot. Licensed pistol of Sanjay Kumar was
found lying near the dead body. One empty, one missed cartridge and three live
cartridges were also recovered therefrom. Prithipal Singh, Sub Inspector (Finger
Prints Expert) was called at that place and the pistol was got examined from
him. It was opined by him that no decipherable finger print impressions were
found.

Santokh Singh and
Sawarn Kumar (hereinafter referred to as "the appellants") were got medically
examined and it was found that they had not consumed any drug or alcohol. The
post mortem on the dead body of 4 5 Sanjay Kumar was duly performed and the
dead body was handed over to his relatives. The other two accused Gurdev Singh
and Jagsher Singh @ Bhola had, thereafter, surrendered in the Court. They were
formally arrested in this case on 25.7.2002. During the investigation, no
witness came forward to give an eye witness account as to how the weapon was
snatched from Sanjay and how he was shot with the same weapon.

The investigation,
however, concluded that the four accused had called Sanjay Kumar from his
house. It appears that extra judicial confession was made by Jagsher Singh @
Bhola and Gurdev Singh before one Vipin Kumar son of Mulakh Raj, resident of
Ram Tirath Road, Amritsar to the effect that they had killed Sanjay Kumar. It
was also stated that on 13.7.2002 in the presence of Prince Masih, son of Buta
Masih, all the four accused persons, had condemned Sanjay Kumar for leaving the
Union and joining INTUC. They had also said that they will have to do something
in that connection.

5 6 The report of
the Forensic Science Laboratory indicated that the pistol recovered from the
site of incident was found to be in working condition. It also indicated that
shots had been fired from the very same pistol. They were duly put on trial for
the offence under Section 302/34 IPC and Section 25 of the Arms Act. At the
trial, it was stated by Dr. Gurmanjit Rai (PW-1) that he had conducted the post
mortem examination on the dead body of Sanjay Kumar @ Shammi on 15.7.2002 at
11.50 a.m. He had proved the post mortem report (Ex. PA). The report mentions
that the following injuries were noticed on the deceased:- "1. Lacerated
wound 1.5 x 1 cm with inverted margins was present on right side of head, 4
cms. lateral to out end of eyebrow.

Abrasion color was
present at the lower margin of wound. Clotted blood was present.

2. Lacerated wound of
1.8 x 0.8 cm was present on left side of head in the temporal region, 5 cms
above pinna of ear. Margins of wound were found everted Clotted blood was
present."

6 7 The cause of
death, in the opinion of the doctor, was laceration of brain, vital organ, as a
result of communicating injuries no. 1 and 2, which was sufficient to cause
death in the ordinary course of nature. The time that had elapsed between the
injuries and death was opined to be few minutes and between death and post
mortem was 24 hours.

4.A
number of witnesses were examined by the prosecution in support of its case.
Upon closure of the prosecution evidence, the statement of the appellants were
recorded under Section 313 Cr.P.C. All the allegations were denied by them.
Jagsher Singh @ Bhola and Gurdev Singh stated that they were innocent and had
been falsely implicated. Appellant No. 1, Santokh Singh stated thus:- "The
allegations against us are totally false.

Deceased was of
aggressive nature and also living under depression. He used to have
unpredictable swings of behaviour. He was drug addict and was facing criminal
cases. He remained in hospital for treatment also. The allegations of my
alongwith other going to his house and to bring him are 7 8 incorrect. He met
us in restaurant. All of a sudden, he fired on his head may be to show false
valour. It all is so sudden and sad, which feelings in him culminated in this
act are difficult to tell.

But he was depressed
and aggressive and possible drug influence. Police on site inspection also
agreed with it, but scenario of place of occurrence was changed. We got totally
perplexed. I am innocent."

Appellant No. 2 gives
the same version as appellant no. 1.

5.Upon
examination of the entire evidence, the trial court convicted all the four
accused under Section 302 read with Section 34 IPC and they were sent to
undergo imprisonment for life and to pay a fine of Rs. 1,000/- each under
Section 302 read with Section 34 IPC. In default of payment of fine, the
defaulter accused would further undergo RI for a period of 6 months. The
aforesaid judgment of the trial court was taken in appeal by the four convicts.

6.The
High Court upon re-examination of the entire evidence has confirmed the
findings recorded in the impugned judgment qua appellant No. 1, Santokh Singh
and appellant No. 2 Sawarn Kumar. However the co-accused Jagsher Singh @ Bhola
and Gurdev Singh were acquitted of the charge under 302 read with Section 34
IPC. It is in these circumstances, that the two appellants have challenged the
aforesaid judgment in this appeal.

7.We
have heard the learned counsel for the parties.

Mr. K.T.S. Tulsi,
learned senior counsel for the appellants submitted that this is undoubtedly a
case of suicide which has been deliberately twisted by the prosecution into a
case of murder. Learned counsel submitted that deceased was suffering from
chronic Schizophrenia. He had been regularly receiving treatment for mental
illness at the Bhatia Neuro Psychiatric Hospital, Amritsar. Deceased was also a
drug 9 10 addict. Learned counsel has placed strong reliance on the statement
made by Dr. J.P.S. Bhatia (DW-1). It is submitted by the learned senior counsel
that due to his illness, behaviour of the deceased was wholly erratic and
unpredictable. It is not possible to know the reason as to why he may have shot
himself. According to the learned counsel, the medical evidence would tend to
suggest that he had suicidal tendencies. Mr. Tulsi further submitted that in
this case, the prosecution has gone out of the way to fabricate the case
against the appellants. The appellants had no motive whatsoever to kill the
deceased.

Even if there was
slight disagreement with regard to the Union activities, the same would not
provide a motive strong enough to commit the murder of the deceased. He
submitted that the appellants had very cordial relations with the deceased.
They had, in fact gone to his house to resolve any outstanding issues. He has
pointed to a number of circumstances which would show that the police has acted
in a partisan manner. According to 10 11 Mr. Tulsi, the entire sequence of
events given by the prosecution is unbelievable. First and foremost, there is
no eye-witness. The FIR has been ante timed. It was in fact not recorded at
11.35 as stated in the record. The inquest was conducted on 15.7.2002 that
would mean that it was conducted sometime after midnight of the night of
14/15.7.2002. In the inquest report, the names of the accused appellants are
not mentioned. It is submitted that the arrival of the police is ante timed.

This is evident from
the general diary which records that the police left for the scene of the crime
at 11.30 p.m.

The position of the
body has been shifted. The empty cartridge of the missed shot was not recovered
till the following day. This had been planted to justify the plea that two
shots were fired. There is no evidence that the appellants had removed the
finger prints. Therefore, the prosecution is suppressing the genesis of the
incident.

According to the
learned senior counsel, the evidence of the witnesses is wholly unreliable. The
witness tend to 11 12 change the stand to suit the circumstances. Counsel
further submitted that this being a case of circumstantial evidence, the
prosecution has to prove that the circumstances on the record would be
inconsistent with the innocence of the appellants. Learned counsel submitted
that there has been definite tempering with the evidence. Even according to the
prosecution witnesses, the deceased was first seen sitting on a chair with his
head on the table. The pistol was said to be lying at the feet of the deceased.
Thereafter, it is sought to be projected that the deceased was lying on the
floor.

According to the
learned senior counsel, the cumulative effect of the inherent weaknesses in the
investigation and tampering of evidence would lead to the clear conclusion that
the appellants had been falsely implicated. Learned senior counsel further
submitted that the prosecution cannot be permitted to take advantage of the
fact that the pistol recovered did not have any fingerprints on it. It cannot
lead to the conclusion that the appellants had 12 13 deliberately removed the
fingerprints. Learned senior counsel also submitted that merely because more
than one shot was fired would not lead to the conclusion that the firing was
not done by the deceased himself. Learned senior counsel also submitted that
the recovery of the empty shells on the following day is itself suspect. The
possibility of the same having been planted by the investigating agency cannot
be ruled out.

8.On
the other hand, Mr. Kuldip Singh, appearing for the State of Punjab submitted
that the prosecution has proved the case beyond reasonable doubt. Learned
counsel submitted that there is no break in the sequence of events. It has been
proved on the record that there was Union rivalry. The appellants were
resentful for the fact that the deceased had joined INTUC after leaving their
Union. They had gone to his house and brought him to the hotel. They had got
the deceased drunk.

Thereafter, they
committed the murder. According to the 13 14 learned counsel, if the deceased
had shot himself, there was no question of two shots being fired. Learned
counsel further pointed out that the evidence of the illness of the deceased is
non-existent. The record produced by Dr. J.P.S. Bhatia (DW-1) is a clear
fabrication. It has been prepared just to help the appellants. Undoubtedly, the
deceased was taking drugs for which he had received some treatment but he was
not a psychiatric case as projected by the appellant.

9.We
have considered the submissions made by the learned counsel for the parties.
The trial court examined the entire evidence threadbare. From the evidence of
the witnesses, it has been established that Shammi had been shot dead with his
own licensed pistol. The incident had taken place at Genesis Hotel. Accused
persons including the appellants herein were present in the dining hall on the
same table as Shammi. The divergence between the version given by the
prosecution and the version of the 14 15 appellants was duly noticed by the
trial court. According to the prosecution, the shots were fired by someone
amongst the accused persons in furtherance of common intention of all of them
to murder Shammi. The defence version on the other hand is that Shammi being a
person of unstable temperament due to his mental illness had committed suicide.
The trial court, in order to, rule out the possibility that the appellants have
not been falsely implicated meticulously noticed the facts which were proved by
the prosecution.

10.On
a careful appreciation of the evidence, it was found by the trial court, and
confirmed by the High Court that Shammi was an active participant in the Union
activities. He had been the Secretary of the Employees' Union. Rajiv Kumar
reiterated the facts about the Union activities of the deceased, Shammi, in his
evidence. He stated that he was present in the house of the deceased when the
accused reached there at about 8.45 p.m. He 15 16 was still at the house when
Prince, the hotel owner, came and told them that Shammi had been shot dead, in
his hotel. Both Rajiv Kumar and the widow of the deceased Indira Rani (PW-5)
had stated that Shammi had taken the pistol alongwith him. He was in the habit
of keeping the pistol in the dub of his pants. She also stated that after
hearing the news about the murder of her husband, she became unconscious. Vipin
Kumar, PW-6 had narrated about the extra judicial confession made by Jagsher
Singh @ Bhola about having committed the murder of Shammi. All these witnesses
were cross-examined at length, but nothing was brought on the record, which
would tend to show that their evidence cannot be believed or trusted. The trial
court also noticed that in the statements made under Section 313, at least two
of the accused had admitted that Shammi had met them in the restaurant. They
had also stated that all of a sudden, he had shot himself in the head, may be
to show false valour. It was stated that Shammi 16 17 was depressed and
aggressive and was possibly under the influence of drugs. The trial court
noticed that all the accused persons were present in the hotel. They sat on one
table. Shammi, as usual had his licensed pistol in the dub of his pants. Even
though, there is no direct evidence of the shooting, it has been established by
the statement made by the owner of the Hotel, i.e., Prince.

He had clearly stated
that he was sitting in his cabin while the deceased and the accused were being
attended by a waiter of his Hotel, Ram Singh. Then all of a sudden, he heard a
sound, he thought as if some part of the cooler had broken down but immediately
thereafter the accused persons tried to run away. However, the waiter Ram Singh
and two others managed to capture two of them. Soon, it was found that someone
among the four persons had fired at Shammi, who was found dead on his seat.

11.Noticing
the absence of fingerprints on the pistol the trial court concluded that the fatal
shot had not been fired by the deceased. His fingerprints were bound to be
present on the pistol in case the shot had been fired by him. The fingerprint
expert in his report has clearly stated that the pistol had been wiped clean.
The trial court, in our opinion, rightly concluded that the fingerprints were
in all probability wiped away by the assailant to remove the evidence of his
fingerprints.

There is no reason
for any other person to remove the finger prints. We are unable to accept the
far fetched suggestion of Mr. Tulsi that the fingerprints have been removed to
rule out the possibility of the deceased having shot himself. There is no
evidence on the record to show that any other person had handled the pistol, in
the interval between the shooting and the arrival of the police. Furthermore,
there is no reason as to why the police would wipe away the incriminating
finger prints.

12.The
trial court also noticed that the post mortem report nowhere mentions that
there was any blackening or tattooing of any area surrounding the fatal wound.

The trial court,
therefore, concluded that the possibility of suicide stands completely ruled
out. The only inference is that it was a case of homicide. The shot was fired
by someone, from amongst the accused appellants. It has also come in evidence
that in fact two shots were fired.

The empty shell of
the first one which missed was recovered some distance away from the body of
the deceased. Taking stock of the entire evidence, the trial court has concluded
that the circumstantial evidence adduced by the prosecution formed a complete
chain which leads to the conclusion, consistent only with the guilt of the
accused and inconsistent with their innocence.

13.The
conclusions arrived at by the trial court have been confirmed by the Division
Bench of the High Court.

The High Court
noticed in extenso the evidence of Indira Rani, PW-5, wife of the deceased. She
had categorically stated about the manner in which the four accused had come to
their house and had requested her husband to accompany them. They had said
something about having discussions about the functioning of the Union. She had
also stated that when her husband left with the appellants, he was carrying his
licensed pistol with him.

She had admitted that
in her statement under Section 161 Cr.P.C., she had not mentioned that Rajiv
Kumar was present when the accused persons had come to the house and she had
also not given information that her husband was also the Secretary of the
Employees' Union and later on he had joined as a President of INTUC. She also
admitted that she had not mentioned to the police that the owner of the hotel,
Prince, had told her that her husband had been shot dead by the four persons
with whom he had gone. She had, however, stated that after Prince had informed
her 20 21 about the death of her husband, she had become unconscious. She
recovered only during the night. She denied the defence version that the
accused had never visited the house. The High Court also noticed the evidence
of Vipin Kumar, PW-6, before whom, the accused Jagsher Singh @ Bhola and Gurdev
Singh had made the extra judicial confession at about 11.00 p.m. on 18.7.2002.
The High Court then recounted in detail the testimony of the owner of the hotel
Arjinder Pal Singh @ Prince (PW-7). In essence, he has stated that the four
appellants had come with the deceased and had sat on one table in the dining
hall. All of a sudden, he heard the sound of a gun shot. At first, he thought
may be the cooler in the dining hall had broken down. He saw the accused
persons starting to run away from the restaurant. Two of them were over-powered
by the waiters, while the other two ran away. He, confidently, gave the names
of the accused, who had come to the hotel. He went to the house of the deceased
and 21 22 informed his wife about the murder. He categorically states about
the arrival of the police at about 11.00 / 11.15 p.m. His statement was
recorded and he narrated the incident to the police. He also stated that the father
of the deceased had reached the hotel before the arrival of the police.
However, the wife reached a little later. According to this witness, the police
had sent the dead body for post mortem. They interrogated the staff and
recorded the statement. In his cross-examination, he has stated that his
restaurant was licensed for serving liquor. He had himself gone to the area
where the dead body of Shammi was lying on the floor. He had noticed the
glasses and other crockery lying on the table. However, he did not notice
whether those glasses contained any liquor. The police did not take the
crockery, which was lying on the table into possession. He stated that the
deceased was bleeding from the mouth. However, he did not see any blood stains
lying on the table or on the clothes. The 22 23 Photographer, PW-8 stated that
in the Photograph (Ex. P16) alongwith the other utensils, only one glass
appears to be visible and no other glass was seen on the floor. He, however,
admitted that in (Ex. P14), it can be seen that one carton of Bag Piper whiskey
and one bucket of ice are lying on the floor near the dead body.

According to him, the
pistol and other ice bucket were seen lying on the table. Therefore, there were
two ice buckets on the site of the incident. He has denied that any bottle can
be seen lying on the site near the dead body in the photograph (Ex. P13). This
witness stated that he had reached the site at about 12.15 to 12.13 a.m.

at night, i.e., after
midnight.

14.In
our opinion, the conclusions of the trial court and the High Court cannot be
said to be manifestly erroneous. There is clear evidence that the appellants
had gone to the house of the deceased to bring him out of the house for the
purpose of committing his murder. The 23 24 reason given, of an effort to sort
out the Union disputes, was merely a ruse to bring the deceased out of his
house.

Mr. Tulsi has
submitted that the appellants were on good terms with the deceased otherwise
they would not have gone to his house. Therefore, this motive of Union rivalry
is a concoction of the prosecution. Learned counsel submitted that the wife of
the deceased mentioned Union rivalry for the first time in the Court. We do not
see much substance in the submission. It appears that there was serious rivalry
between the two Unions. Only two days prior to the shooting, the deceased had
left the Union of the appellants and become the President of INTUC. Had the
deceased not apprehended any danger from the accused persons, he would
certainly not have taken the pistol with him. His wife, who appeared as PW-5
has clearly stated that he had specifically asked to take the pistol with him.

15.Mr.
Tulsi has also submitted that the prosecution had miserably failed to collect
any material evidence from the scene of the crime. Rather, they have tried to
help the prosecution by literally shifting the body of the deceased. According
to him, even the prosecution witnesses themselves, have said that the deceased
was sitting on the table with the head on the table. However, according to the
police, the body was lying on the floor and the pistol was lying some distance
away.

16.We
are unable to agree with Mr. Tulsi. There is no reason why the police as well
as the prosecution would go out of the way to falsely implicate or prosecute
the appellants. Both the trial court and the High Court upon appreciation of
the evidence have concluded that there is evidence to show that the accused and
the deceased were carrying liquor with them. The glasses and the chicken curry
were served to them at the hotel. The High Court also concluded that the
presence of the carton of 25 26 Bag Piper whiskey would clearly show that the
deceased had consumed alcohol. Thereafter, the deceased was shot in the head
with his own pistol. Whether the pistol was snatched away by one of the accused
persons or was handed over by the deceased, is neither here nor there.

The fact of the
matter is that the deceased was shot with his own pistol. There was no blackening
or tattooing of the skin surrounding the wound.

17.Mr.
Tulsi laid considerable amount of emphasis on the fact that the deceased was a
psychiatric patient. He was stated to be suffering from schizophrenia. He had
placed reliance on the evidence given by Dr. J.P.S. Bhatia. We are of the
considered opinion that both the Courts have rightly rejected the evidence
given by DW-1.

The patient admission
and treatment register produced seems to be a most unreliable document. It has
been maintained in a slip shod manner. There are no systematically maintained
entries, either about the particulars of the patient, the disease or the
treatment.

This witness admitted
that there is some overlapping in the entries. The document does not inspire
any confidence. By no stretch of imagination can it be said to be reliable
document. This apart there is no evidence indicating the particular expertise
of Dr. Bhatia. Even according to his evidence there was only preliminary
diagnosis of the medical condition of the deceased. There was no proof of any
expert clinical examination of the deceased. From the above it cannot be said
that the deceased was suffering from chronic schizophrenia. This plea has been
rightly rejected by both the courts below.

18.We
may notice the scenario which emerge from the proven facts, on record:- The
deceased and the accused were working in the same organization. They were
office bearers of the same Union.

Two days before the
incident, the deceased along with the 27 28 Union of the appellants and become
the President of the rival union. They, therefore, resented the action of the
deceased. They formed a common intention to eliminate the deceased. They went
to the house of the deceased and invited him to accompany them to resolve the
Union disputes. They took him to Hotel Genesis where they consumed liquor; they
were also served food by the hotel staff. At some point of time the pistol of
the deceased was taken by one of the appellants. It is wholly irrelevant
whether it was voluntarily given by the deceased or taken by the assailant.
Thereafter, one of the accused persons shot the deceased in the head with his
own pistol. They then wiped the fingerprints on the pistol and threw the pistol
down next to the body of the deceased. They tried to escape. This would tend to
indicate towards the guilt rather the innocence of the appellants. Two of them
were captured just outside the hotel, the other two managed to escape. The
injury on the deceased does not indicate that he had shot himself. The injuries
show that the shot 28 29 has not been fired at point blank range. There is no
tattooing or blackening of the skin surrounding the entire wound. The
consumption of liquor cannot be doubted in view of the evidence given by the
waiter, who served the food. This waiter had clearly stated that the visitors
had brought the liquor with them. They were only given the glasses and the
buckets of ice. They had also ordered chicken curry, which was duly given to
them. To ensure that the waiter does not become an eye witness to the murder,
he was conveniently removed from the dining hall. They told him to go and get
two more chapattis. He, therefore, went into the kitchen of the hotel. While,
he was coming out of the kitchen, he heard the sound of gunfire. Although, this
witness was declared hostile, it is consistent with the prosecution version.
Even otherwise, the carton of Bag Piper whiskey is quite visible in one of the
photographs.

19.All
these circumstances taken together clearly form such a continuous and unbroken
chain as to leave no manner of doubt that the deceased was shot dead by one of
the appellants. The cleaning of the pistol to remove the fingerprints is a
circumstance which is a strong pointer to the guilt of the appellants.

20.In
our opinion, the judgment of the trial court as also of the High Court do not
call for any interference.